PNM v Republic (Criminal Appeal E014 of 2025) [2026] KEHC 8404 (KLR) (3 June 2026) (Judgment)

PNM v Republic (Criminal Appeal E014 of 2025) [2026] KEHC 8404 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8404 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E014 of 2025 DKN Magare, J June 3, 2026 Between PNM Appellant and Republic Respondent (Being an appeal from the judgment of the trial court, Hon. J. Irura (SPM) in Kigumo MCSO No. E021 of 2021, delivered on 17.12.2024) Judgment 1.This appeal arises from the judgment of the trial court, Hon. J. Irura (SPM) in Kigumo MCSO No. E021 of 2021, delivered on 17.12.2024 and. The Appellant was charged with defilement contrary to Section 8(1) & (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on the night of 7.02.2021 at an unknown place, within Murang’a County, intentionally and unlawfully caused his penis to penetrate the vagina of MN, a child aged 17 years. 2.There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, on the night of 7.02.2021 at an unknown place, within Murang’a County, intentionally touched the vagina of MN, a child aged 17 years with his penis. 3.The appellant was arrested on 03.03.2021. He was arraigned on 4.03.2021. He denied the charges. He was granted bond. Upon witnesses being heard he was convicted and sentenced to 15 years imprisonment. Hence this appeal. He was aggrieved and set forth 13 grounds of appeal. It is unnecessary to set out the grounds herein. Evidence 4.The complainant testified on oath that she was born on 12.04.2003. she was in class and was called on 6.02.2021 by the matron that the Appellant, who was her sponsor wanted to take her out for treatment. she had a skin infection. the appellant had left her the previous day with a sum of Ksh, 500/= when he was attending a school board. She boarded a vehicle to Kaharati she met a certain woman who gave her the phone and she called the appellant who told her to wait as he was still coming. He arrived at about 4-5pm and did not take her to hospital, he took her to place where he later learnt was the vicarage. 5.The appellant was a reverend pastor. He promised to take her to Mama C to sleep but took her to the vicarage. The school principal called him and he promised that the minor was to sleep at Mama C’s, house. She was mama Kanisa. She told the appellant that it is not too late and she could go home back but he told her that it is him who got her out of school and not the parents. He told her to sleep in one room and she should not switch off lights. 6.When she was sleeping, she had someone coming to bed and was wearing only the underwear. She asked who it was but he held her neck. She struggled with him and he overpowered her, removed her clothes did bad manners by inserting his penis. The following day he called her back to school. They had sex the whole night. The following day, he escorted her and gave her 200/=. The appellant told her that if she told anyone, she loses school fees. She started feeling pain when she went to the toilet and informed madam Rachel and the school principal. She had noted reported immediately she went to school. She reported to Kigumo police station. she was taken to Kigumo, Maragua and Gichocho Health Centre. 7.When she was admitted to her school she had no money, therefore had spoken to the school principal who referred her to the board chairman, the appellant. She explained herself and the appellant agreed to pay her fees. The appellant was the one paying her school fees. She identified the appellant in the dock. She continued that when the appellant came to the room, lights were on. 8.On cross examination, she stated that the appellant had told her that she as to do to her what the principal’s husband was doing to the principal. The witness stated that she did not take the police to the chemist where the appellant bought medicines. The appellant had not told her that he was to take her to hospital. However, she saw the place where the appellant took her, the following day as she had not seen it properly the previous day. 9.The complainant made reported on 18.2.2021. When the appellant took her, the place was unknown hence why she told the police that it was unknown to her. He saw the appellant when he was entering the room before he switched off the lights. 10.The complainant told the treating medical officer that the appellant had defiled her. Further, no other person was present in the appellant's house at the time she was there. The leave out sheet had nothing to demonstrate that it had been requested by, or issued at the instance of, the appellant. On re-examination she stated that she started hallucinating after the ordeal. 11.PW2 was Joseph Wanyiri Ndirangu a clinical officer she produced a P3. He recalled that the complainant was sent to the facility and who gave a history of defilement. She went to their facility on 18.02.2021 where she was examined and the labia Majora had bruises. There was no spermatozoa She was put on antibiotics and analgesics. On urinalysis there were pus cells and spermatozoa were not seen. He filled the P3 Which she produced as an exhibit. From the bruises, though old, he formed an opinion that it was defilement. The victim had been seat Muranga Level 5 Hospital with abnormal behaviour. 12.On cross examination testified that the P3 was signed. He did not carry out a test on spermatozoa. He stated that the bruises were not fresh an indication of healing. The history of defilement came from bruises and history. He could not estimate the age of the bruises as they were healing. he testified that though, UTI may arise from other causes, from the history, the bruises were consistent with defilement. he stated that, when she appeared before Gichocho Dispensary, the minor complained of someone having sexual intercourse with her. 13.PW3 was Ms Ndirangu, a teacher at the victim’s school. She testified that on 15.02.2021 she went to supervise students. It was her evidence that at 10.00 am, she received a report about a sick student. The student was MNK. She had pain on going for short call. They took the child to Gichocho Dispensary at 1500hours. The minor, MNK, was examined and found to have been defiled by a known person and put on medication. They were referred to Kigumo subcounty dispensary. They informed the school principal and informed her that they were referred to Kigumo subcounty hospital. 14.The following day, they went to Kigumo subcounty hospital, where the minor was examined against and found to be defiled. She stated that the leave out sheet is usually filled by the parents or guardians. The appellant was the minor’s guardian. She did not know parents of the minor as the appellant is the sponsor. The appellant is the one who requested for leave out sheet. 15.She stated that the appellant attended and sat in the board of managements meetings. She identified the appellant as the minor’s sponsor. She stated on cross examination that she learnt that the victim had been issued with a leave out sheet, which the appellant issued. The student was accompanied by police minor to Kigumo Subcounty Hospital. She accompanied the minor on instructions from the school principal to Kigumo Subcounty Hospital. 16.PW4 was RN, a teacher in the minor’s school. She recalled in 2021, when the minor was in school form 1, that is on 10.02.2021 after the second lesion she found MNK following her and crying. the minor indicated that she wanted to talk to her. she talked with the minor who told her that the sponsor who pays her fees wants her paying back in sexual intercourse. The minor identified the sponsor as Rev PN, a board of management member. She explained to the witness that on 5.02.2021 after the board meeting the sponsor saw her and noted she had a skin problem and needs treatment. On 6.02.2021 she was called by the matron and requested that the sponsor had asked that they meet at Shell Petrol station at Kaharati so that she could be taken to hospital. 17.They met at Shell Petrol station at Kaharati to be taken to hospital. However, the sponsor took her to the vicarage. later, she could overhear a conversation over the phone between the appellant and the principal. The appellant had indicated to the principal that the complainant was to spend a night at Mama C, Mama Wa Kanisa. She asked the sponsor to ask the principal to pick her but it did not happen. Instead, she was shown where to spend and the appellant and ended defiling her. She reported the sexual inter course to the witness, PW4. She left the following morning of 7.02.2021. It was her evidence that there was no one else in the vicinity. They left the vicarage early and did not see anyone in the vicarage the minor again told the principal. On 13.02.2021, the principal called her about the same story. 18.She stated that on the following Monday the principal called her and asked that the minor writes the story(confession). On 19.02.2021 she was informed to go and record a statement at Kigumo police station. She knew the appellant as he was a member of the Board of management of the school. She testified that the minor left the school with leave out on 6.2.2021 and came back on 7.20.2021. The person who defiled her was Rev PN, the appellant. The minor saw no one else leaving the vicarage. 19.On cross examination by the accused, she said that the matron and teacher on duty gave the minor a leave out sheet. The minor followed her on 10.02.2021 after the morning lesson. SMN was the principal of the school for the last decade or so. On 5.2.2021 they held a board of management meeting in the computer laboratory. After discussion the members met students after the meeting the appellant who had 2 children in the school, a biological daughter in form 3 and the victim who was in form 1. After the meeting the appellant called over the sick girl and wanted to help her seek medication. The minor was released to the complaint, so that she could seek medication, for a skin infection. 20.She continued that the following day the minor was allowed to go on a motor bike and wait at Kaharati Shell® petrol station. She later left for her personal errand together with the deputy school principal, Lucy and saw the girl at Kaharati shell petrol station. Shortly she saw the appellant’s vehicle, she called him what they were doing and he answered that he was taking the girl to hospital. In the evening the principal called enquiring where the girl was to spend and he told her the minor was to spend at mana chiru’s union leader. The following day during Sunday service the girl came back and joined other girls. The girl entered into the Sunday service hall at about 10.30 am. 21.Her further evidence was that on 13. 02.2021, the minor told her that rev peter did not take her to hospital but took her to Munguini vicarage. She narrated how they had supper and later at middle of the night, she identified the appellant, who went to the complainant’s room, removed her uniform and repeatedly had sex with her. She later confided in teacher Rachel, the dean of students. MNK used to have a lot of pain in passing urine and could not sit. The school matron took her to Gichocho health centre and later to Kigumo subcounty hospital. She conformed from pw4 on the story the minor had given. On urine test at Gichocho health centre, they found that the girl had an infection. The doctor indicated that she had bruises on the vaginal area. 22.She testified that the complainant did not leave school after returning from the sponsor until 15.02.2021, when she was taken to hospital. She was later released when she became hysterical. The student gave the name of the defile as Rev PN She called the appellant the evening of the incident and inquired of the girl. The minor old her that she overheard the conversation. Hitherto when the minor was looking for the school, the principal had told the minor that Rev PN of Kahashio parish was the chair. The minor had told her that the parents could not cater for fees. It was the appellant who requested for school leave out on 6.02.2021. She personally saw him pick the minor at shell petrol station. 23.On cross examination, she stated that it is the appellant who sought permission to take the minor to hospital. She had mentioned that the minor told her that she felt that she did not belong to the school. She was from very humble background. The school later engaged with the parents when the issue arose. The mother was present at Kigumo Subcounty Hospital. 24.PW6 was No. 11xxxx -PC Fredrick Tinga of Kigumo Police station performing general duties. He was the current investigating officer since the other two officers were out of station by transfer and maternity leave. On 18.02.2021, the principal of the minor’s school went to the station accompanied by a minor, matron, teacher on duty. He stated that Pc Eunice escorted them to Kigumo Subcounty Dispensary where the P3 was filled. The minor explained that her sponsor requested for release of the student from school for skin disease treatment. The appellant went to a chemist and bought some medicine and proceeded to [Particulars Withheld] Church Parish. 25.The reverend PN gave the minor a room to sleep in and later came to the room and forcefully had sexual intercourse with the minor. In the morning he ordered the girl to prepare and go to school. The appellant escorted her to Kambî and gave her Ksh 200/=. The minor went to school and later informed teachers. The birth certificate was produced as exhibit 3. The appellant went to the police station on 3.3.2021 with his lawyers as he was being sought. He was arrested and arraigned in court the following day. 26.On cross examination, the minor reported that she did not know, the place where she was taken but on leaving, she saw it was a church. The minor was defiled and went to school and informed the teachers. The date of offence was different from the date of reporting. He confirmed that the victim had a skin disease. The minor did not know where the chemist was that the appellant bought medicine from. They did not get the reverend when they went to the church. He stated that they went to the church on 19.02.2021 but did not get the reverend. 27.The appellant was placed on his defence. Section 211 of the Criminal Procedure Code was complied with. Initially, he elected to give sworn testimony and to call three witnesses in support of his defence. However, on the hearing date, he changed his election and instead gave an unsworn statement. He further indicated that he would call two witnesses in support of his defence. 28.The appellant stated that they had a meeting on 5.02.2021 and they had two agendas. The principal allowed them to interact with students including her daughter and MNK, whom he sponsored. She wanted him to see over a skin disease. He approached the school principal that she releases the minor so that he could attend to her medical condition. They were to meet at Kaharati shell® petrol station where he could take her to Maragua Rural Hospital. 29.He testified that he left his office at Mûgûmo’inî Shopping Centre, located just before the church headquarters, where he was working for a community-based organization, that he had founded. Before leaving, he informed Teresia, a shopkeeper, that he was going to collect the complainant and that, should they be delayed at the hospital, he would hand her over to Teresia's care. 30.He stated that he met the minor and accompanied her to Maragua rural hospital for treatment. Upon arrival, they found a long queue and waited until about 4.00 p.m. According to him, the attending doctor advised that they purchase medication because the skin department did not operate over the weekend. He thereafter purchased the prescribed medicine at a cost of Ksh. 450/=, which he produced receipts as Defence Exhibit 2. 31.The appellant further testified that he decided to leave the minor in the care of TN until the following morning when she was due to report back to school. He stated that he was scheduled to travel to his rural home in Gatundu and accordingly left for home, arriving at about 8.00 p.m. While at home, he received a telephone call from the school principal. He informed the principal that the minor was at the home of TN. He then spent the night at his rural home. 31.He continued that on 7.02.2021, he proceeded to Gachathaîni, where he had been posted. While there, he received a call from a person unknown to him. During the conversation, he indicated that he was on his way to Munguîni. The caller informed him that a police Land Rover and several police officers had surrounded the church headquarters. According to the appellant, he suspended his pastoral duties and set out to establish what had transpired. He testified that on 3’03.2021, he visited the police station, where he was informed that allegations had been made that he had defiled a minor and was arrested. 31.DW2 was TNK of Mugumoîni. She testified that on 6.02.2021, the appellant arrived at her residence accompanied by a young girl and left the girl in her care before departing at about 5.30 p.m. According to her, the girl spent the night at her house and left the following morning. She further stated that she escorted the minor to Maragua Stage at about 6.30 a.m. So that she could continue with her journey. The witness testified that approximately two weeks later, she was surprised to learn that the appellant had been arrested on allegations of defilement. 32.During cross-examination, she stated that the child had been brought to her at about 6.00 p.m. She confirmed that she was a member of the ACK and that she personally accompanied the minor to Maragua Stage. She further stated that the appellant ordinarily resided in Munguîni. 33.In response to questions from the court, DW2 stated that the appellant was her employer at the shop where she worked. 34.DW3 was Stephen Waithaka from [Particulars Withheld], a Nyumba Kumi elder. He testified that on the material day, at about 6.00 p.m., the appellant sent for him. According to the witness, the appellant had recently been transferred to a new parish and requested him to record minutes and convey an apology on his behalf as he would not be available to attend a scheduled meeting. The witness stated that he left the appellant’s home at about 10.00 PM. He further testified that approximately three weeks later, he learnt that the appellant had been charged with the offence of defilement. 35.On cross-examination, DW3 stated that the appellant was the chairman of the Karuia Elders Association and that he frequently spent time at the appellant's place of work. He further explained that the appellant had entrusted him with the minutes because he would not be available to attend the meeting the following day. 36.In response to questions from the court, the witness confirmed that the appellant was the chairman of the association and that the association also had a secretary and a treasurer. Impugned Judgment 37.The court found that the matter was proved beyond reasonable doubt. On penetration the court relied on the case of Stephen Otieno Musewe v Republic [2018] KEHC 1178 (KLR), where R.E.Aburili J, stated as follows:PW2 testified and stated that the complainant was examined and the injuries sustained as a result of penetration were all listed in the P3 produced in evidence thus this court is unable to grasp what other medical evidence or examination remained in the open or untouched by the medical doctor. Accordingly, I find and hold that the medical evidence was sufficiently adduced to proof penetration. 38.On penetration, the court relied on the case Hilary Nyongesa V Republic High Court Appeal No. 123 of 2009 and in two courts adopting the dicta in the case of Francis Onamu v. Uganda the court held as follows:In defilement cases medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observance and common sense 39.On whether the appellant was positively identified the court placed reliance on the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), where the court of appeal [Omolo, Bosire & O'Kubasu JJ.A] held as follows:The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error. The surrounding circumstances must be considered (see R. v.Turnbull[1976]63 Cr. App. R.132). Among the factors the court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all. This Court, in Mohamed Elibite Hibuya & Another v. R. Criminal Appeal No. 22 of 1996 (unreported), held that“... it is for the prosecution to elicit during evidence as to whether the witness had observed the features of the culprit and if so, the conspicuous details regarding his features given to anyone and particularly to the police at the first opportunity. Both the investigating officer and the prosecutor have to ensure that such information is recorded during investigations and elicited in court during evidence.Omission of evidence of this nature at investigation stage or at the time of presentation in court has, depending on the particular circumstances of a case, proved fatal - this being a proven reliable way of testing the power of observation, and accuracy of memory of a witness and the degree of consistency in his evidence." 40.The court considered the defence evidence, in particular the issue of alibi. Reliance was placed on the case of Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), where the court[Kihara Kariuki (Pca), Musinga & Gatembu, JJ.A), as they then were] held as follows:It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja V Republic [1983] KLR 501.The appellant was arrested on 16th May, 2003 and taken to Shauri Moyo Police Station where his statement was recorded. That statement was not produced before the trial court. Had that been done, the court would have been able to consider whether what the appellant had stated at the earliest opportunity regarding his whereabouts on the material day was in line with his defence of alibi before the court. In Karanja V Republic (Supra), this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. Submissions 41.The appellant filed submissions dated 15.12.2025. They submitted that the burden of proof was placed on the appellant for the alibi defence. He submitted that the prosecution case was riddled with inconsistencies and contradictions on factual narrative. It was their submission that that criminal liability, must be founded on cogent, credible, and free material. Reliance was placed on the case of Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:“It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt." 42.He accused the court of glossing over the evidence and instead selectively relied on isolated portions of evidence to reach a premeditated conclusion. they also relied on the Ugandan case of Twahangane Alfred –Vs- Uganda CR. Appeal No. 139 of 2002 (2003) UGCA,6 where it was held that:“with regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case." 43.He submitted that the court erred by failing to consider the defence. This was said to be a blatant disregard and abdication of judicial duty. The appellant assumed no role in proving an alibi that he raises. Reliance was placed on the case of Victor Mwendwa Mulinge v Republic [supra] and in the case of Kimotho Kiarie v Republic [1984] KECA 65 (KLR), where the court of appeal[] held as follows:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable; Said v Republic [1963] EA 6. 44.On misdirection on the burden of proof in criminal matters, the appellant placed reliance on the most oft quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481 where it as held as follows:“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 45.He submitted that the court erred in relying on sole evidence of an untrustworthy complainant without corroboration. It was submitted that the pattern disclosed inconsistent, erratic patterns of deception and inconsistence. According to the appellant the minor concealed material evidence. It was his submission that the evidence on credibility is not peripheral. Though conviction may occur on sexual offences on sole evidence, it is not a sole unfettered discretion especially for witnesses with a disposition towards deceit. Reliance was placed on the case of Kassim Ali V Republic [2006] KECA 156 (KLR),where the court of appeal [R.S.C. Omolo, S.E.O. Bosire and E.M. Githinji] held as follows:“The correct legal position is stated in the case of Chila v. Republic [1967] E.A 722 at page 723 para C:The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.Moreover, as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 46.The appellant posited that the failure to interrogate the appellant’s character and truthfulness must be construed to render the conviction legally indefensible. He relied on the case of Kimanyi v Republic [1979] KECA 5 (KLR), where, Madan, Miller & Potter JJ A):In our opinion the evidence of the complainant does not come up to the minimum standard which we require before upholding a conviction in a criminal case. We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 47.It was their submission that the case fell far too below the threshold. Thigh they stated that there were inconsistencies and contradictions, the did not set them out. The court was blamed for failing to make adverse inference. 48.They stated that medial report shield support or at least not contract the prosecution case. Reliance was made on the case of Ngui v Republic [2012] KEHC 5491 (KLR). 49.They submitted that the court cannot fill the gaps in medical evidence. Reliance was placed on the case of Sawe v Republic [2003] KECA 182 (KLR), where the court of appeal [RO Kwach, AA Lakha & EO O'Kubasu, JJA] held as follows:“We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt." 50.The appellant submitted that the court held that there were old genital injuries without more, which cannot be used to infer penetration to an accused person. Reliance was placed in the case of Hamisi Swaleh Kibuyu v Republic [2015] KECA 296 (KLR), to posit that old broken hymen cannot be used to convict for defilement in absence of clear proof linking the appellant to the alleged act. They prayed that it is dangerous to impute guilt based on historical and inconclusive medial findings. They relied on the cases of R. v.Turnbull[1976]63 Cr. App. R.132 and Republic v Peter Muiruri & another [2014] KEHC 5991 (KLR). 51.The court was blamed for disregarding evidence that favour the defence and defence evidence. This is said to have offended Article 50 of the constitution. 52.They also blamed the court for mischaracterizing evidence and matters not borne out of testimony. The court should thus not descend into the arena of litigation. The blamed the court for substituted evidence with conjecture. The burden of proof was equally shifted the burden of proof contrary to section 50(2)(a) of the constitution. They prayed for the appeal to be allowed. 53.The Respondent filed submissions dated 09.12.2025. The state submitted that 5 witnesses testified. The medical evidence showed injuries in the labia majora pus cells and whitish discharge. The complainant was treated for a urinary tract infection on 15.02.2025. The hymen was old broken as this was 12 days after the incident. The testimony showed that the offence occurred. They submitted that the appellant was properly identified as the chairman of the BOM of the victim’s school. 54.They submitted that the appellant was properly identified. Reliance was placed on MW v Republic [2019] KEHC 4709 (KLR), where R. Nyakundi J, held as follows:“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity." 55.Reliance was made on section 124 of the Evidence Act. It was stated that there were no inconsistencies in the prosecution witness. The conditions courts follow to waive corroboration were discussed in the case of Wabwire v Republic (Criminal Appeal E068 of 2022) [2024] KEHC 15621 (KLR), where D. KEMEI J stated as follows:“There are reasons within the meaning of Section 124 Proviso of the Evidence Act for this Court to believe that the complainant was telling the truth in view of her being the sole eye witness to the heinous ordeal. The section is an exception to the rule for corroboration to evidence of children which, is based undoubtedly on the good sense and principle of best interests of the child and the usual occurrence of sexual offences in circumstances where there may be no witness other than the victim, but which must in the interest of fair trial of accused persons and to be used sparingly and only where the circumstances fit the situation contemplated in the law that there is no other evidence available but a sexual offence crime should not go unpunished for lack of corroboration of the victim’s sole evidence. It is a cardinal principle of the law on corroboration that evidence which itself requires corroboration cannot corroborate other evidence. I find that the exceptional provision of Section 124 of the Evidence Act was properly invoked in this case. Hence, the finding on the identity of the Appellant as the perpetrator was properly arrived at. It is highly unlikely that the complainant could just wake up one morning and proceed to Mombasa just to see a stranger unknown to her." 56.They submitted that the there is no doubt that the minor’s testimony was truthful. They submitted that the magistrate wondered why the alibi was not introduced at the earliest time. They submitted, rather wrongly that the defence did not substantiate the alibi. The court thus did not shift the burden of proof. They concluded that the conviction and sentence were proper. 57.They submitted that not every contradiction leads to evidence being rejected. Reliance was placed on the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, where it was held as follows:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case." 58.They noted that there are no contradictions between the evidence of PW1 and PW2. They submitted that any small inconsistencies between the written statement and the testimony in court do not affect the charge. They invited the court to look at the age of the minor and take judicial notice of the events leading to the case. Reliance was placed on the Indian case of Appabhai and anr. vs State of Gujarat AIR1988SC696, 1988CRILJ848, 1988(1)CRIMES606(SC), (1988)2GLR823, JT1988(1)SC249, 1988(1)SCALE228, 1988SUPP(1)SCC241, 1988(2)UJ27(SC), AIR 1988 SUPREME COURT 696, (1988) 1 CRIMES 606 (1988) 1 JT 249 (SC), (1988) 1 JT 249 (SC), where the supreme court of India stated as follows:“The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed:This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered (emphasis and disambiguation mine). 59.They posited that there were no irregularities in the record that were based on contradictions and inconsistencies. Further reliance on the dominant principle in exercise of discretion of evidence admitted was placed on the persuasive case of S v Sauls and Others 1981 (3) SA 172 (A) at 182G-H where the court took the approach to be adopted when dealing the evidence of a single witness, that is a common-sense approach that was advocated, and the court advised as follows:“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of a single witness. The trial judge will weigh his evidence, will consider its merits and demerits and, having done so will decide whether it is trustworthy, and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony he is satisfied that the truth has been told… The presiding officer when evaluating the evidence of a single witness should not allow the exercise of caution to displace the exercise of common sense." 60.In respect to age, they stated that it is a critical factor to be proved. They relied on the case of Hillary Nyongesa v. Republic [2010] eKLR, where Mwilu J, as then she was posited as follows:Age is such a critical aspect in Sexual Offences that it has to be conclusively proved. Anything else is not good at all. It will not suffice. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim. In this case the age of the victim was not proved and hence any sentence passed and meted out to the accused would be a matter of conjecture which would not stand in criminal cases where the offence must be proved beyond any reasonable doubt. 61.It was submitted that the investigating officer minuted the case and produced a birth certificate showing the minor was born on 26.10.2010. Reliance was placed on the case of Francis Omuroni Vs Uganda, Appeal No. 2/2000 where the court held that:“In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 62.It was their submission that the age of the minor was sufficiently proved. Analysis 63.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different." 64.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 65.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 66.Brennan J addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 67.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 68.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 69.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 70.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. The Law 71.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 72.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 73.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 74.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, in Malindi Criminal Appeal No. 504 of 2010 stated as follows:Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim. 75.The minor was born on 12.04.2003. The birth certificate was registered onn19.11.2012. The offence reportedly occurred on 6.02.2021. The minor was 17 years and 10 months. She is thus under 18 years and qualifies as a minor pursuant to section 8(4) of the sexual offences act. Therefore, the age was proved. 76.The next question is whether the state provide penetration. This can be proved either through direct or circumstantial evidence. Finding of penetration is independent to the question whether the appellant is a perpetrator. The minor stated that she was penetrated. PW5 found old broken hymen. The Minor suffered a urinary tract infection. she had bruises in the labia majora. a broken hymen does not of itself show penetration. the court relied on Section 124 of the Evidence Act, which provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 77.The court is aware that the appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The appellant accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. He was presumed guilty until he was convicted. The presumption of innocence was addressed in the Canadian case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada explained the standard of proof as doth:The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt. 78.The appellant set out an alibi defence. It was not a normal alibi. It is that the was not at the locus in quo but was at Kiamwangi between 6pm and 10.00pm. He gave instructions that he was not to be at Kiamwangi the following day. The complainant on the other hand, notes that the appellant was present at about 5pm. The presence at the locus on quo was corroborated by the principal. The minor testified that the appellant later came to her room at midnight. There was no witness testifying that they were with the appellant between 10pm and the following morning. The minor was escorted by the appellant to the stage. The appellant who was fully represented did not cross examine on these time lines. In the case of Macharia v Republic [2023] KECA 1556 (KLR), the court of appeal [F Sichale, LA Achode & WK Korir, JJA] stated as follows:“Finally, the appellant complained that his defence was not considered. We have looked at the record. The defence preferred by the appellant was a mere denial as he thought PW1’s mother had framed him because he had excommunicated her from his church. This issue was not raised during cross-examination and it would appear that it was an afterthought." 79.The appellant did not cross examine any of the witnesses on the alleged involvement of Teresa. The complainant was testified in court on where she slept and the locus in quo. Her evidence on where she slept was not challenged on cross examination. DW2 did not know where the appellant was after dropping the minor. However, there was no evidence that the minor slept at DW2’s place. The complainant was able to place herself in the room with the appellant at midnight up to morning. DW2 was only able to disclose that she was the appellants employee at cross examination. 80.However, the evidence of DW3 actually supported the prosecution case. He gave evidence that the appellant was not to be at Kiamwangi the following day. The question of falsity of attack is the duty of the state. However, the state has no duty to prove a false alibi. The appellant may have been at Kiamwangi at 10.00pm. He was however escorting the minor, after penetration from midnight to morning. In the case of Wachera v Republic [2025] KEHC 11843 (KLR), this court posited as follows:43.The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home.44.The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus:In considering an alibi, we observe that:a.An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.b.An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.c.The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.d.The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. 81.A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated: An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...46.In the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence:i.There is no burden of proof on the accused to prove his alibi.ii.If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubtiii.An alibi moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word.iv.If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable (betroubaar).v.The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi.47.The burden of proving the falsity of an alibi was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: -It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution....48.In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. 82.In this case, there is no reasonable probability that the alibi is true. Though appellant indicated that he was at Maragua Rural Hospital, the school principal saw the minor at 5pm at shell petrol station. The same principle was to collect them minor but was lied to that Mama C will sleep with her. The minor was in church and not in PW2 house. PW2 did not explain which person was placed in her custody. 83.Reading the evidence of DW2 one shudders that the evil of defilement is a monster that is protected not just by the perpetrators but vampires who lie in the name of God. The evidence of PW2, reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR)….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” 84.In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 85.The appellant called for the minor to take to his hospital, there is no evidence that the minor was taken to hospital. On the contrary he ended up with the appellant, defiled. in the entire chain, from the evidence, only the appellant had a penis. the rest of the people who handled the minor were women. it cannot be said the DW2 defiled the minor. The defence statement was so shaky that cannot be believed. Why will a child who was supposed to be taken to hospital not taken to hospital she left the school for treatment. She ended up penetrated. The only conclusion that the hospital the appellant intended to take the minor to was the vicarage and not for treatment but penetration. 86.The appellant sought to have the character of the complainant looked into. He forgot the injunction given in Section 34 of the Sexual Offences Act as follows:1.No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.2.Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.3.The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning-a.Relates to a specific instance of sexual activity relevant to a fact in issue;b.Is likely to rebut evidence previously adduced by the prosecution;c.Is likely to explain the presence of semen or the source of pregnancy or disease or any injuryd.The complainant, where it is relevant to a fact in issue;e.Is not substantially outweighed by its potential prejudice to the complainant's personalf.Dignity and right to privacy; org.Is fundamental to the accused's defence, held as follows 87.There is no reason why the appellant did not take the minor to hospital and return her to school. The minor heard the discussion between the appellant and the principal. There was no cross examination on this aspect. I therefore find and hold that the lower court was correct in holding that the minor was telling the truth. Even the surrounding evidence support the minor’s evidence. 88.This is what is known as circumstantial evidence. The appellant got permission for the minor to leave school. He was the only man, from the entire evidence who met the complainant. All evidence irresistibly led to the fact that the appellant was the perpetrator of the offence. The case of Ngui v Republic [supra] was appealed and confirmed in the case of Fappyton Mutuku Ngui v Republic [2014] KECA 570 (KLR), the court of appeal held as follows:He also argued that a DNA examination was not conducted to link him to the defilement. In our view, such evidence was not necessary and in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who had defiled her.In Aml v Republic [2012] eKLR (Mombasa), this Court upheld the view that:The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.This was further affirmed in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) where the court stated:… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.The evidence of the minor witnesses squarely placed the appellant as the one who defiled PW2. It cannot therefore be said that there was no evidence that would link him to the crime. This ground of appeal is therefore baseless and is accordingly rejected. 89.Circumstantial evidence must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. Kihara Kariuki, Pca, M’inoti & Murgor, JJ.A] Court had this to say on circumstantial evidence:However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. 90.Circumstantial evidence was addressed in the case of Sawe v Republic [2003] KECA 182 (KLR), the court of appeal[RO Kwach, AA Lakha & EO O'Kubasu, JJA] held as follows:“In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning of R v Kipkering arap Koske & Another 16 EACA 135 where it held, inter alia, that:In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt”. 91.This is not a case based on suspicion. It is a case where both direct and circumstantial evidence. In the case of Republic v Denis Wamaye Kimemia & another [2019] KEHC 11092 (KLR), Wakiaga J, posited as follows:Whereas there is strong suspicion that the accused persons were involved in the unlawful killing of the deceased, the said suspicion is based on hearsay evidence which is uncorroborated and the court has said over and over again that mere suspicion however strong cannot be a ground for sustaining a conviction in a criminal case as was Stated by the Court of Appeal in Mary Wanjiku V Republic, Criminal appeal no 17 OF 1988 that:Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused freedom and at times life. 92.The court is satisfied that the appellant is the perpetrator. The court will now turn to the medical evidence to determine whether the minor. 93.The court will now turn to the medical evidence to determine whether penetration was proved. The complainant testified that she was sexually penetrated throughout the night. She stated that she knew the perpetrator was the appellant and explained that he warned her not to disclose the incident to anyone, lest she loses her sponsorship. The evidence further showed that the complainant had only one sponsor and that she saw the person who had escorted her. Her testimony was corroborated by the medical evidence. According to the medical officer, the complainant had been penetrated, a finding that lends support to her account of the events. 94.There was nothing in the documents raising any doubt on the penetration of the complaint. The penetration was not just from the medical record, but from the account by the minor. It was consistent all through. The minor was able to show the locus in quo was the vicariate at Munguni ACK. the minor had not been there before except the period where she was taken on 6.02.2021, and the morning of 7.02.2021, when she was defiled. 95.I am satisfied that the minor was penetrated by the appellant. The court found the evidence of the minor credible. I also notice that the said evidence is consistent and unchallenged. It must be remembered that medical evidence is not sine qua non for prove of defilement. It can be proved even in the absence of medical evidence. In the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, the court held as thus:Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded. 96.I have perused the same evidence and I do find it is credible and consistent. . In addressing the question of experts, the court of appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so." 97.Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [19951998] 1 EA 29, that:It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say: Because this is the evidence of an expert, I believe. 98.The incident occurred for a period of more than 24 hours. The movement of the child from school to the vicarate, chemist and finally back to school was corroborated. The appellant was not a stranger. he was the complainant’s sponsor and a chair of the school board of management. 99.It is sad that he took advantage of a child for whom he stood in a position of loco parentis, in two aspects. As the chair or member of the school, all the children are entrusted to him for care and protection secondly, he was specifically a sponsor to the minor herein, who was from an extremely humble background. 100.This was a clear breach of trust. The appellant and the complainant were well known to each other. Accordingly, this was not merely a case of identification but one of recognition. The complainant first saw the appellant in broad daylight and thereafter spent a considerable period in his company throughout the night. She testified that the appellant sexually assaulted her during that period and later escorted her to the stage the following day. this was the time he warned her not to reveal this to anyone lest sponsorship vanishes. The circumstances afforded the complainant ample opportunity to observe and recognize the appellant. The possibility of mistaken identity is therefore excluded. In the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 101.The appellant was properly recognized and known by the minor. The court below correctly analyzed the alleged contradictions, which did not go to the root of the charge. The court correctly weighed the defence and the prosecution evidence and came with a rational decision. This was as addressed in the case of Erick Onyango Ondeng’ vs. Republic [2014] eKLR, where the Court of Appeal held that:“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law." 102.The court must now address the question of sentence. The appellant was sentenced to 15 years' imprisonment. That sentence is the statutory minimum prescribed for the offence. In the circumstances, there is no basis upon which this court can interfere with the sentence imposed by the trial court. The sentencing discretion of the court under the Sexual Offences Act is circumscribed by the minimum penalties prescribed therein. The sentence meted out was therefore lawful and proper. This particular offence under section 8(1) and (4) of the Sexual Offences Act provides for a mandatory sentence of 15 years imprisonment. The Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), stated as follows:“Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 103.In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34(KLR), the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 104.This means that the sentences prescribed under the Sexual Offences Act are not merely suggestive but are binding upon the courts unless. Section 8(4) of the Sexual Offences Act prescribes a sentence of 15 years' imprisonment. The sentence imposed upon the appellant was therefore lawful, proper, and in accordance with the statute. Having re-evaluated the entire evidence on record and the applicable law, this court finds no merit in the appeal. The conviction is upheld and the appeal is consequently dismissed in its entirety. 105.The court is obligated to consider the period in custody. The same is provided for under section 333(2) of the Criminal Procedure Code. It provides as follows:(1)…(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. 106.The appellant was released one day after arrested, that is, on 4.3.2024. Therefore, his sentence should start from the day of conviction, on 17.12.2024, less one day spent in custody. Determination 107.In the circumstances, I make the following orders:a.The appeal on conviction and sentence is dismissed. However, the 15 years sentence should start from the day of conviction, on 17.12.2024, less one day spent in custody upon arrest.b.Right of appeal 14 days.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Mr Kihara for the StateAppellant presentCourt Assistant – Martin